There’s been a lot of buzz about Katie Couric’s documentary “Under the Gun.” Some of the buzzing noise is praise by the anti-gun crowd, who is happy to have another biased piece of media to reinforce their pre-existing beliefs. The rest of the buzzing is the hornet’s nest Katie Couric’s team kicked through their editing tricks (a vain attempt to make responsible gun owners look under-informed), and possibly illegal activities. Particularly, a few scenes involving the purchase of firearms. The question is, did anyone on that team actually do anything legally wrong? We asked Michele Byington, attorney at the law firm of Walker & Byington and a Texas Law Shield Independent Program Attorney, to help us separate crime from movie magic.
When you watch the documentary, it shows one individual purchasing guns from other individuals; they do this to illustrate how easy it is to obtain firearms. So far, so good. But then the director gave an interview to LipTV that had an interesting twist:
(skip to 1:35 to save yourself the pain of the entire interview)
“This adds a whole different dimension to the entire scenario,” Michele said. The interview states that one of the producer’s employees, that resides in Colorado, had to go to Arizona to purchase the firearms. “You may be wondering why they had to leave Colorado to buy these guns for the documentary; that’s because Colorado has a universal background check law in place. It really shows how if someone is determined, they will break the law to get what they want.”
According to Michele, this raises four major issues:
- Purchasing firearms across state lines;
- Purchasing a firearm for someone else, at someone else’s direction;
- What a “conspiracy” is under federal law;
- And the consequences the producer’s actions could have on the sellers.
Purchasing a firearm across state lines
Michele explained that the law is strict in regards to purchasing handguns or long guns outside of your state of residence. “Long guns can be purchased from a licensed dealer, as long as both your state of residence and state of purchase have no laws prohibiting your purchase.” Handguns, however, cannot be purchased in another state, either privately or from a licensed dealer, and be brought back into your state of residence.
“In the interview above, she stated that they purchased a Bushmaster and three handguns from private individuals.” Michele also noted that the interviewee and interviewer both incorrectly referred to it as an “assault weapon,” but that is another battle for another day.
Michele states that while they did purchase the firearms out of their resident state, it only becomes a crime if they take the firearms back to their resident state. “As dumb as it sounds, they can buy the gun in one state, so long as they don’t take it home, they haven’t committed a crime.” So, the burning question is, did they take the guns back home?
The producer, in another interview, stated that the firearms were immediately turned over to Arizona law enforcement officers for use or destruction. So, no crimes committed here.
Straw purchases are defined in 18 U.S.C. § 922(a)(6); this applies whenever you purchase a gun for someone else from a licensed dealer. Michele said, “since they purchased from individuals, this doesn’t apply at all. So no crime here either.”
“18 U.S. Code Section 371 defines the crime of conspiracy.” Michele stated that the elements of the crime were simply, 1) two people conspire to commit a federal offense, and 2) one or more of the conspirators do something to effect that crime. For this crime, the question boils down to, what was their initial plan? Michele explained that, “If the plan was to take the guns back to Colorado, then they were planning to commit a crime, and that would satisfy the elements for conspiracy. But if the plan all along was to turn it over to Arizona law enforcement, they were not planning a crime, and conspiracy wouldn’t stick either.”
Michele also pointed out that in their dishonest quest, innocent individuals were caught in their wake. “The worst part is, the producers did not even consider the fact that they had implicated the sellers of the firearms. They went out of their way to engineer the perfect situation for the documentary while guaranteeing their own legal safety, but put innocent gun owners at risk.” It is illegal to knowingly sell a firearm to an individual from another state without going through a licensed firearm dealer, even if they don’t take it back to their resident state. “So if they said, ‘Hey, we’re from Colorado doing a documentary, can you sell us these guns,’ they tricked the sellers into committing federal offenses. If they didn’t say anything at all, then the sellers are legally safe.”
Assuming the producer and documentary team (who have continuously lied and misrepresented facts to push their own agenda already) are telling the truth about what they did with the guns after their purchase, then they didn’t commit a crime. Michele concluded, “The fact that in making this documentary, which was trying to illustrate why we need more laws that make it harder to buy guns, the team almost broke existing laws that were supposed to regulate gun purchasing, is too ironic to miss.”